Meigan v. M'Donough

10 Watts 287

• Court: Supreme Court of Pennsylvania
• Decided: September 15, 1840
• Status: Published

Opinion

Per Curiam.

When the plaintiff sold the property, she was an executrix of her own wrong; and the principal defendant has since become the decedent’s administrator. Which of them is now entitled to the proceeds of the property for payment or distribution? An executor de son tort is liable to the rightful representative for all beyond rightful payments by retainer or disbursement. No claim for any such payment has been urged here; and the consequence that the administrator would be at liberty, the moment after the money secured by the obligation were recovered, to sue the plaintiff in a representative character to recover it back, is decisive of the question. Then, to avoid a circuity so preposterous, the administrator must be allowed to set off, in this action, what would be coming to him in his representative character; or, to escape any incongruity on that head, to set up the plaintiff’s liability as an equitable defence; for she would certainly be enjoined by a chancellor, relief not being attainable by a set-off at law. Again — had he paid the money before he became administrator, he would have been entitled, as administrator, to recover it back in assumpsit for so much had and received on a consideration which happened to fail. A voluntary payment of it, after .administration granted to him, would be taken for a gift of so much; which clearly shows that the money sought to be recovered, belongs to the administrator, and not to the plaintiff, and that his right to it may be set up in liar of her action.

Judgment reversed.